Australian Securities & Investment Commission v GDK Financial Solutions Pty Ltd (in liq) (No 4) [2008] FCA 1071

FEDERAL COURT OF AUSTRALIA

Australian Securities & Investment Commission v GDK Financial Solutions Pty Ltd (in liq) (No 4) [2008] FCA 1071

CONTRACTS – whether evidence of contractual context is relevant where provision at issue is clear on its face – limitations on all-moneys or dragnet clauses – whether all-moneys clause will secure a debt of a fundamentally different character from the debt specifically contemplated by the parties at the time they entered into the contract – implied waiver of condition precedent – whether entitlement to substitute nominee in favour of contracting party will void contract for uncertainty or demonstrate lack of intent to create contractual relations – whether entry into contract with knowledge that it is irreconcilably inconsistent with a prior contract between different parties implicates an implied condition precedent to the validity of the later contract that the prior contract be terminated – whether recital has effect where it is inconsistent with operative provision of agreement – when a term will be implied – whether a term is essential

CORPORATIONS – whether general ledgers and journal entries are books kept by a body corporate under a requirement of the Corporations Act – whether in the absence of contrary evidence the matters stated in a corporate book are conclusively established

PROPERTY – whether indefeasibility of title to real property in Torrens system is conferred not only on the holder of the fee simple estate but also on the registered holder of an interest in the land including a mortgagee

WORDS AND PHRASES – "all-moneys clause", "book", "dragnet clause", "essential term", "general ledger", "implied term"

Corporations Act 2001 (Cth) ss 9, 1305 Transfer of Land Act 1893 (WA) ss 4, 68, 134

Australian Securities and Investments Commission v GDK Financial Solutions Pty Ltd (2006) 236 ALR 699 cited Australian Securities and Investments Commission v Rich (2005) 216 ALR 320 followed ASIC v GDK Financial Solutions Pty Ltd (in liq) (No 3) [2008] FCA 448 followed Bahr v Nicolay (No 2) (1988) 164 CLR 604 discussed BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 226 cited Breskvar v Wall (1971) 126 CLR 376 cited Chacmol Holdings Pty Ltd v Handberg (2005) 215 ALR 748 cited Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 cited Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471 applied Fountain v Bank of America Trust & Savings Association (1992) 5 BPR 11,817 followed Hadley v Hazian Proprietary Limited (Full Court of the Supreme Court of Western Australia, unreported, 13 July 1995) distinguished Harpur v Levy (2007) 16 VR 587 cited Hospitality Group Pty Ltd v Australian Rugby Union Ltd (2001) 110 FCR 157 cited Manks v Whiteley [1912] 1 Ch 735 cited McVeigh, in the matter of Piccolo v National Australia Bank Limited [2000] FCA 187 Masters v Cameron (1954) 91 CLR 353 discussed Olympic Holdings Pty Ltd v Windslow Corporation Pty Ltd (in liq) [2008] WASCA 80 cited Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 76 ALJR 436 cited Uranium Equities Ltd v Fewster [2008] WASCA 33 applied